Reversing the trend towards species extinction, or merely halting it?

Abstract

"The purpose of the federal Endangered Species Act (ESA) is to conserve and recover populations of endangered and threatened species to a point at which legal protection is no longer necessary. One of the main tools employed by the ESA to accomplish this goal is its section 7 consultation mandate, which ensures that federal agency actions do not “jeopardize the continued existence of” listed species, or destroy or adversely modify listed species’ critical habitat. However, Congress’s failure to define key concepts within the ESA, including jeopardy, recovery, and survival, as well as the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service’s (FWS) (collectively “Services”) inconsistent interpretation of such directives, has led to a semantic conundrum as to what it means for a species to “recover” versus merely “survive” under the ESA. The Ninth Circuit’s holding in National Wildlife Federation v. National Marine Fisheries Service (NWF) furthers an evolving trend by federal courts of requiring the Services to consider both recovery and survivability standards in their section 7 consultations. Most notably, the Ninth Circuit was the first federal appellate court to integrate a recovery standard into the jeopardy analysis prong of section 7, rather than solely focusing on the adverse modification consideration. This Note argues that as a result of the NWF decision, the Services’ jeopardy analysis mandate under section 7 must incorporate a recovery standard rather than simply a survivability standard." (p. 1)